Bielasz v. Mestler Construction CA4/1 (2013) · DecisionDepot
Bielasz v. Mestler Construction CA4/1
California Court of Appeal Jul 12, 2013 No. D059565Unpublished
Filed 7/12/13 Bielasz v. Mestler Construction CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ROGER BIELASZ et al., D059565
Plaintiffs, Cross-defendants and Respondents, (Super. Ct. No. 37-2009-00052477- v. CU-BC-NC)
MESTLER CONSTRUCTION, INC.,
Defendant, Cross-complainant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Thomas P.
Nugent, Judge. Affirmed.
Law Offices of Jerome J. Schiefelbein, Jerome J. Schiefelbein; Law Offices of
James E. Swingley and James E. Swingley for Defendant, Cross-complainant and
Appellant.
McDonnell & Associates, Michael B. McDonnell and Douglas M. Fieldfor
Plaintiffs, Cross-defendants and Respondents.
Mestler Construction, Inc. (Mestler) appeals following a jury verdict against it in a
lawsuit brought by Roger Bielasz and Dena Bielasz (the Bielaszes) finding that Mestler
breached contracts to design a residence and to perform building pad preparation work.
Mestler contends that the trial court prejudicially erred by denying its motion in limine to
exclude evidence of the damages that the Bielaszes suffered as a result of the contractual
breaches. As we will explain, we conclude that the trial court was within its discretion to
deny the motion in limine and to admit the Bielaszes' evidence of damages. Accordingly,
we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. The Parties' Dispute and the Jury Verdict
As alleged in the parties' pleadings, Mestler is a licensed contractor who
(1) performed design work for a home that the Bielaszes planned to build after their
former home was destroyed in a wildfire, and (2) performed building pad preparation and
other work to prepare for construction of the home. The Bielaszes sued Mestler,
alleging — among other things — that Mestler breached the design contract by
(1) preparing plans for a home that was in excess of the square footage specified by the
Bielaszes, and (2) performing work during the pad preparation that made the pad unsafe
and created a potential for rockslides. In their first amended complaint, the Bielaszes
asserted eight causes of action against Mestler: (1) negligence; (2) breach of contract;
(3) breach of the covenant of good faith and fair dealing; (4) declaratory relief;
(5) intentional interference with prospective economic relations; (6) fraud; (7) slander of
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title; and (8) trespass to chattel. Mestler filed a cross-complaint for breach of contract
and equitable restitution.
The matter proceeded to trial, and the jury found in favor of the Bielaszes on a
breach of contract theory. In a special verdict form, the jury found that Mestler breached
a contract to design the house; breached a contract for preparation of the lot; and
breached a contract to design a retaining wall. The jury awarded damages in the amount
of (1) $61,800 for breach of the contract for the house design, and (2) $37,500 for breach
of the contract for lot preparation. The jury awarded no damages in connection with the
contract to design a retaining wall.
B. The Relevant Discovery
This appeal focuses on Mestler's contention that the trial court should have
excluded evidence of damages at trial because of the Bielaszes' purportedly deficient
responses to certain discovery propounded by Mestler. We therefore describe the
relevant discovery.
In February 2010, the Bielaszes responded to form interrogatories propounded by
Mestler.
In response to form interrogatory No. 7.1, which asked for a description of the
property damaged, the nature of the damage, the amount of the damage, and how the
amount was calculated, the Bielaszes provided an extensive description of the damage
caused by the improper excavation of the building pad, set forth in several paragraphs.
Among other things, the response stated that "[a]ll excavation work . . . had to be
redone," but that "[t]he work that is being redone is currently ongoing so the exact cost is
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unknown at this time." The Bielaszes then provided projected costs for some of the
work, including (1) approximately $72,000 to remove boulders necessary to stabilize the
building pad, and (2) in excess of $27,000 for the design, engineering and permit costs
for a new retaining wall.
Form interrogatory No. 7.2 asked, "Has a written estimate or evaluation been
made for any item of property referred to in your answer to [form interrogatory No. 7.1],"
and form interrogatory No. 7.3 asked if any item of property had been repaired and
inquired about the repair cost. To these interrogatories, the Bielaszes responded that
"[e]valuation, repair, and estimates are presently in the process."
Form interrogatory No. 9.0 asked about any other damages being claimed by the
Bielaszes. They responded by providing a description of the type of expenses caused by
the flawed design plans for the house. Specifically as to the amount of damages incurred,
they stated that "[a]s discovery is still continuing[,] the exact amount is unknown at this
time[;] however it is known that it is no less than $50,000 that the Bielaszes paid to
Mestler for services that were rendered useless."
During Roger Bielasz's deposition several months later on September 21, 2010,
which was two days before the discovery cutoff date, counsel for Mestler referred to
some of the earlier responses to form interrogatories and asked Mr. Bielasz whether there
were "evaluations, repairs, and estimates as described in [interrogatory No. ]7.2 that were
done sometime after" the date of the February 2010 interrogatory responses. Mr. Bielasz
answered, "I have not done all those estimates as of yet." However, counsel for the
Bielaszes interjected that that "[t]here are some from the contractors and stuff," and
4
Mr. Bielasz followed up by stating, "Correct. They have not been collated and organized
into a total."
C. Mestler's Motion in Limine to Exclude Evidence of the Bielaszes' Damages
On October 25, 2010, Mestler filed a motion in limine, which requested an order
precluding the Bielaszes "from introducing evidence of and/or making reference to any
damages claimed to have been sustained by [the Bielaszes], or any reference to the
amount of damages [the Bielaszes] claim to have sustained as a result of any act or
omission by [Mestler]." Mestler contended that the exclusion of evidence was required
because the Bielaszes "have failed and refused to identify the amount of their damages
and/or the manner of calculation of their claimed damages in response to timely and
proper written discovery, or in response to proper deposition questions asked just two
days prior to the discovery cut[]off date."
The trial court denied the motion. In its comments, the trial court pointed out that
bringing a motion to compel is required when a party does not adequately respond to
discovery; that the Bielaszes did produce at least 2,700 documents and had indicated that
that they were prepared to provide documentation about damages prior to trial;1 and that
it was improper to raise discovery disputes for the first time on the eve of trial. Further,
the trial court observed that it "would be a short trial" if the plaintiffs were precluded
from putting on evidence of damages.
1 It is unclear whether the Bielaszes filed a written opposition to the motion in limine, as Mestler did not include it in the appellate record. 5
Prior to the beginning of trial, counsel for Mestler stated a "continuing and
standing objection to the admission of any evidence by the [Bielaszes] of the amount of
damages they incurred as the result of my clients' alleged conduct or the manner in which
it was calculated."
During trial, the Bielaszes presented evidence about the damages that they
suffered as a result of Mestler's alleged breach of contract. The jury relied on that
evidence to award damages to the Bielaszes in the amount of $99,300.
II
DISCUSSION
The sole issue that we resolve in this appeal is whether the trial court erred in
denying Mestler's motion in limine to exclude evidence of the Bielaszes' damages.2
A. Standard of Review
As an initial matter, we address the proper standard of review. Regardless of
whether the trial court's ruling is best characterized as a ruling on a request to exclude
evidence or a ruling on a request to impose a discovery sanction, we apply an abuse of
discretion standard of review. (Pannu v. Land Rover North America, Inc. (2011) 191
2 Mestler's appellate brief identifies several interrelated appellate issues, each of which is based on a common fundamental premise, namely that the trial court erred in denying the motion in limine to exclude the Bielaszes' evidence of damages. Specifically, in addition to its general argument that the motion in limine was improperly denied, Mestler argues that because evidence of damages was improperly admitted, (1) the jury should not have been asked on the special verdict form about the amount of the Bielaszes' damages; and (2) insufficient evidence supports the jury's findings regarding damages. Because we conclude that the trial court did not err in admitting evidence of the Bielaszes' damages, we need not, and do not, address either of Mestler's additional appellate issues. 6
Cal.App.4th 1298, 1317 ["Trial court rulings on the admissibility of evidence, whether in
limine or during trial, are generally reviewed for abuse of discretion."]; Bell v. H.F. Cox,
Inc. (2012) 209 Cal.App.4th 62, 76 [a ruling on a motion to exclude witness testimony at
trial as an evidence sanction for misuse of the discovery process is reviewed for abuse of
discretion].)
Mestler asserts two different theories as to why a de novo standard of review is
appropriate. It first argues that the de novo standard of review applicable to questions of
statutory interpretation applies here because the trial court's ruling involved the
interpretation of the Evidence Code. (See Sinaiko Healthcare Consulting, Inc. v. Pacific
Healthcare Consultants (2007) 148 Cal.App.4th 390, 401 [issues of statutory
interpretation arising in the review of an order imposing discovery sanctions is reviewed
de novo].) We disagree. Nothing in the trial court's ruling or in our review presents an
issue of statutory interpretation. Second, Mestler states generally that "[w]here there is
no factual dispute, independent appellate review is appropriate." However, the cases it
cites for that proposition have nothing to do with the admission of evidence or the
imposition of evidentiary sanctions as a result of discovery abuses. (People v. Avila
(2006) 38 Cal.4th 491, 529 [review of ruling to exclude a juror for cause]; People ex rel
Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1144
[review of a ruling to disqualify a party's counsel].) As we have explained, those types of
rulings are reviewed under an abuse of discretion standard.
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B. The Trial Court Did Not Err in Denying the Motion in Limine to Exclude Evidence of the Bielaszes' Damages
We now turn to Mestler's main argument — that the trial court should have
excluded evidence of the Bielaszes' damages based on "undisputed facts of discovery
abuse" that were purportedly demonstrated by the Bielaszes' responses to Mestler's form
interrogatories and by Mr. Bielasz's statements during his deposition regarding damages.
1. Mestler Did Not Establish an Abuse of the Discovery Process
The fundamental problem with Mestler's argument is that Mestler has not
established any discovery abuses by the Bielaszes.
Mestler contends that the Bielaszes failed to provide information about their
damages in their responses to the form interrogatories. That is not accurate. The
Bielaszes provided lengthy responses that thoroughly discussed the factual basis for their
damage claims against Mestler. Further, to the extent possible at the time, the Bielaszes
quantified their damages by providing specific monetary amounts relating to some of the
items. There is no indication in the record that the Bielaszes were untruthful in
responding to the form interrogatories or omitted any information that was available to
them.
Although Mestler takes issue with the Bielaszes' failure to provide any written
estimates of their damages, there is no indication in the record that any such written
estimates existed at the time. Therefore, the responses to the form interrogatories
properly stated that "[e]valuation, repair, and estimates are presently in the process." By
responding in this way, the Bielaszes followed the statutory requirement that responses
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should be as "complete and straightforward as the information reasonably available to the
responding party permits," and that "[i]f an interrogatory cannot be answered completely,
it shall be answered to the extent possible." (Code. Civ. Proc., § 2030.220, subds. (a),
(b).)
It is well established that as long as responses to interrogatories contain the
information that is currently known to the responding party, that party will not be
prevented at trial "from presenting subsequently discovered facts." (Singer v. Superior
Court of Contra Costa County (1960) 54 Cal.2d 318, 326.) Therefore, the Bielaszes
properly presented evidence at trial about damages developed after they responded to the
form interrogatories.
If Mestler means to argue that the Bielaszes were required to provide additional
information about their damages as that information became available, there is no merit
to that position. Code of Civil Procedure specifically prohibits continuing interrogatories
that require a party to "supplement an answer . . . that was initially correct and complete
with later acquired information." (Id., § 2030.060, subd. (g).) Mestler was required to
propound supplemental interrogatories if it wanted to know if there were additional
investigations or factual developments that would change the original responses given by
the Bielaszes, but there is no indication that it did so. (Id., § 2030.070, subd. (a) ["a party
may propound a supplemental interrogatory to elicit any later acquired information
bearing on all answers previously made by any party in response to interrogatories"].)
The record also reveals no abuse of the discovery process with respect to how
Mr. Bielasz answered questions about damages at his deposition. As we have described,
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when counsel for Mestler asked Mr. Bielasz whether he had prepared a written estimate
of damages as referred to in form interrogatory No. 7.2, Mr. Bielasz responded that he
had not yet prepared any such estimate. Mestler has presented no evidence suggesting
that Mr. Bielasz's answer was untruthful. Further, as shown in other statements during
Mr. Bielasz's deposition, Mestler did receive all of the existing evidence concerning the
Bielaszes' damages through the Bielaszes' extensive document production.3 The trial
court noted in its ruling on the motion in limine that the Bielaszes had produced
numerous documents. 4
3 In the excerpt from Mr. Bielasz's deposition that appears in the record, after confirming that the Bielaszes had complied with a request for production of documents, counsel for Mestler asked, "That means that if we look in the documents that you provided to us, we will find all of the evidence which you have with respect to the damages incurred by you, for example?" Mr. Bielasz replied, "Correct." In its appellate brief, Mestler argues that there is no evidence in the appellate record that the Bielaszes produced all of the documents concerning their damages. We disagree. Mr. Bielasz's deposition provides that evidence. Mestler also contends that the documents produced by the Bielaszes could not have contained evidence concerning the Bielaszes' damages because the responses to the form interrogatories "indicate[] the non-existence of such documents." Mestler is wrong. The form interrogatories do not ask whether any documents exist evidencing the Bielaszes damages; instead they ask about the existence of a written estimate of damages.
4 Mestler also relies on a provision in the Code of Civil Procedure under which a complaint for money damages must include a statement as to the amount demanded. (Id., § 425.10, subd. (a)(2).) Citing this provision, Mestler contends that the Bielaszes were required to respond to discovery requests about their damages by providing exact information about the amount of damages they were claiming. We reject that argument because Code of Civil Procedure section 425.10, subdivision (a)(2) concerns the standards for deciding whether a complaint is properly pled, not for whether a plaintiff has a specific obligation to produce evidence of damages during discovery. Except in a default judgment where the relief granted to the plaintiff "cannot exceed that demanded in the complaint," in all other cases "the court may grant the plaintiff any relief consistent with the case made by the complaint and embraced within the issues." (Id., § 580, 10
Accordingly, because Mestler did not establish any discovery abuse by the
Bielaszes, the trial court was well within its discretion to reject Mestler's motion in limine
to exclude evidence of damages as a remedy for the Bielaszes' purported discovery
abuses.
2. Mestler's Remaining Arguments Lack Merit
Mestler asserts additional arguments to support its contention that the trial court
erred in denying the motion in limine. As we will explain, none of the arguments has
merit.
First, Mestler takes issue with the trial court's comment that Mestler should have
earlier dealt with perceived discovery abuses by bringing a motion to compel rather than
seeking the drastic remedy of an evidentiary sanction on the eve of trial. According to
Mestler, the trial court's comments were improper in that Mestler could not have brought
a motion to compel further responses from the Bielaszes because they claimed that they
did not have any additional information to turn over. This argument is puzzling because
Mestler clearly believes that the Bielaszes did something wrong in responding to
Mestler's discovery requests that constituted an abuse of the discovery process. Although
Mestler is not clear about what it thinks the Bielaszes should have done differently, it was
Mestler's responsibility to file a discovery motion to obtain an order compelling the
Bielaszes to respond the discovery in the manner that Mestler believed to be required. As
the trial court properly recognized, if Mestler had acted diligently during the discovery
subd. (a), italics added.) Thus, the omission from a complaint of a precise damages figure does not limit the ability of the plaintiff to obtain a judgment awarding damages. 11
process, the problem with the Bielaszes perceived discovery abuses could have been
addressed and resolved without requiring Mestler to seek an order excluding all evidence
of damages from the trial.5
In a related argument, Mestler contends that the trial court improperly denied the
motion in limine because it incorrectly viewed a motion in limine as an improper forum
for seeking a discovery sanction. This argument fails because it misapprehends the trial
court's ruling. Mestler apparently relies on the trial court's comment that "this isn't the
time to take care of those issues," which followed the trial's observation that Mestler
should have brought a motion to compel. As we understand the trial court's comments, it
was not stating that a motion in limine is always an improper forum for obtaining
exclusion of evidence from trial as a result of discovery abuses. Indeed, a trial court
could reasonably choose to make such an order in ruling on a motion in limine if the
party seeking that order had diligently pursued all other avenues of remedying the
discovery abuses during the pretrial discovery process, and if the opposing party received
the notice and opportunity to respond required by the Code of Civil Procedure prior to the
imposition of evidentiary sanctions. (See Code Civ. Proc., §§ 2023.030, subd. (c),
2023.040; Sauer v. Superior Court (1987) 195 Cal.App.3d 213, 216-217 [trial court
granted motion in limine to exclude all evidence of economic loss as a sanction for
party's willful noncompliance with court-ordered discovery after extensive discovery
5 To the extent Mestler argues that there was insufficient time to bring a motion to compel regarding Mr. Bielasz's deposition, which took place two days before the discovery cutoff date, the trial court reasonably pointed out that an ex parte procedure was available to Mestler. 12
motion practice].) However, the trial court indicated that in this particular case it was
improper for Mestler to bring up the issue of discovery abuses for the first time in the
context of a motion in limine because those issues could have been addressed more
efficiently and effectively at an earlier stage of the litigation. That observation is
reasonable and well grounded, and the trial court was thus well within its discretion to
rely on Mestler's belated attention to discovery issues as one ground to deny the request
to exclude evidence of the Bielaszes' damages.
Finally, Mestler argues that the trial court should have excluded evidence of the
Bielaszes' damages pursuant to Evidence Code section 352. However, Mestler did not
develop that argument in the trial court, and accordingly it may not rely on Evidence
Code section 352 as a ground for its appellate argument. "Evidence Code section 353,
subdivision (a) allows a judgment to be reversed because of erroneous admission of
evidence only if an objection to the evidence or a motion to strike it was 'timely made and
so stated as to make clear the specific ground of the objection,' " and " ' " 'defendant's
failure to make a timely and specific objection' on the ground asserted on appeal makes
that ground not cognizable." ' " (People v. Demetrulias (2006) 39 Cal.4th 1, 20.)
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DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
NARES, Acting P. J.
MCDONALD, J.
14
AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court did not abuse its discretion in denying the defendant's motion in limine to exclude evidence of damages, as the plaintiffs had not engaged in discovery abuse and the defendant failed to pursue appropriate discovery motions prior to trial.
Issues
Did the trial court abuse its discretion by denying a motion in limine to exclude evidence of damages based on alleged discovery abuses?
Did the plaintiffs fail to comply with discovery obligations regarding the disclosure of damages?
Was the defendant's motion in limine an appropriate procedural vehicle for seeking discovery sanctions on the eve of trial?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“we conclude that the trial court was within its discretion to deny the motion in limine and to admit the Bielaszes' evidence of damages.”
“Mestler has not established any discovery abuses by the Bielaszes.”
“it was improper to raise discovery disputes for the first time on the eve of trial.”